DOCSLIB.ORG

Preserving, Requesting and Producing Electronic Information

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Preserving, Requesting and Producing Electronic Information EDiscovery: copyright © Western Digital Corporation Preserving, Requesting & Producing Electronic Information by: Lisa M. Arent Robert D. Brownstone William A. Fenwick © Copyright 1999, 2002, 2003 Lisa M. Arent and Fenwick & West LLP 6/11/03 updated version by Robert D. Brownstone Hard copy of 12/5/02 version available at: 19 SANTA CLARA COMPUTER & HIGH TECH. L.J. 131 (Dec. 2002) TABLE OF CONTENTS Page I. INTRODUCTION ......................................................................................................1 II. PRESERVATION AND COLLECTION OF ELECTRONIC DATA ...........................2 A. The Duty to Preserve Evidence .................................................................2 1. Preservation Obligations in the Electronic Context.......................2 2. Nature and Consequences of Duty to Preserve .............................4 a. Introduction ............................................................................4 b. Ethical Obligations.................................................................4 c. Sanctions ................................................................................4 d. Potential Criminal Penalties ..................................................6 3. When the Duty Arises .......................................................................7 a. Pre-Litigation ..........................................................................7 b. After Service of Complaint ....................................................8 c. Once Discovery Process has Begun ....................................9 4. What Must be Preserved ..................................................................9 5. Attorney’s and Client’s Notification Obligations..........................10 B. Scope of Preservation Duty - "Deleted" Files and Back-up Tapes........13 1. "Deleted" Files.................................................................................14 a. Introduction ..........................................................................14 b. Court-Ordered Hard Drive Searches...................................14 c. Sanctions for Heinous Deletions ........................................17 2. Deleted Back-up Tapes...................................................................18 a. Background on Back-up Tapes...........................................18 b. Failure to Cease Ordinary Recycling..................................19 c. Restoring & Searching Back-up Tapes ..............................21 C. Inspection of Opponent's Computer System ..........................................25 D. The Logistics of Producing Electronic Information................................27 1. Production of Compilations of Electronic Information................27 2. Compelling Creation of Electronic Information............................27 3. Facilitating Opponent's Access of Electronic Information..........29 4. Allocating Compilation and Production Costs .............................32 III. PRACTICAL LITIGATION TIPS REGARDING ELECTRONIC DISCOVERY........36 A. Tips for Requesting Electronic Information from the Other Side..........36 1. Overview/Strategy...........................................................................36 i TABLE OF CONTENTS (continued) Page 2. Preservation Requests and Orders ...............................................37 3. Considerations Particular to Electronic Information ...................38 a. Specifically Request All Desired Types of Items...............38 b. "Meet and Confer" Negotiations .........................................40 c. Details Of the Opponent's Computer System....................41 4. Parameters of Seeking Court Intervention ...................................43 5. Assessing the Adequacy of Opponent's Electronic Production .......................................................................................44 B. Tips for Responding to Electronic Information Production Requests.....................................................................................................45 1. Respond to Preservation Requests...............................................45 2. Advising Client of Duties to Preserve and Communicate ...........45 3. Inventory and Search Your Client's Computer System ...............45 4. Consider Retaining Back-Up Tapes ..............................................46 5. Secure Information; Establish its Authentication Foundation.......................................................................................46 6. Considerations Regarding Copying or Inspecting Hard Drives ...............................................................................................47 IV. USING COMPUTER EXPERTS TO AID IN DISCOVERY AND TO ASSIST/SWAY COURT .........................................................................................47 A. Benefits of Retaining a Computer Forensics Expert ..............................47 B. Relative Expertise of Opposing Experts..................................................49 V. CONCLUSION .......................................................................................................51 ii TABLE OF AUTHORITIES Page(s) CASES Abrams v. Enron Corp., et al. No. H-01-3630 (S.D. Tex. Nov. 13, 2001) (Amended Complaint) ..................................6 Adobe Systems, Inc. v. South Sun Prods., Inc. 187 F.R.D. 636 (S.D. Cal. 1999)..................................................................................42 Aguimatang v. California State Lottery 234 Cal. App. 3d 769, 286 Cal. Rptr. 57 (1991).............................................................3 Alexander v. FBI 194 F.R.D. 305 (D.D.C. 2000) .........................................................................29, 43, 50 Amalgamated Bank v. Lay, et al. No. H-01-3624 (S.D. Tex. Dec. 4, 2001)........................................................................6 Amsted Indus. “ERISA” Litig. 2202 WL 31844956 (N.D. Ill. Dec. 18, 2002) ...............................................................23 Anderson v. Cornejo 2001 U.S. Dist. LEXIS 2330 (N.D. Ill. March 6, 2001).................................................44 Anti-Monopoly, Inc. v. Hasbro, Inc. 1995-2 Trade Cases (CCH) ¶ 71, 1995 U.S. Dist. LEXIS 16355, 1995 WL 649934 (S.D.N.Y. Nov. 3, 1995) ................................................................27, 29, 32, 49 Antioch Co. v. Scrapbook Borders. Inc. 210 F.R.D. 645 (D. Minn. 2002).................................................................14, 16, 26, 27 Applied Telematics, Inc. v. Sprint Communics. Co. 1996 U.S. Dist. Lexis 14053 (E.D. Pa. Sept. 17, 1996)..........................................10, 20 Armstrong v. EOP 1 F.3d 1274 (D.C. Cir. 1993)..........................................................................................4 Bills v. Kennecott Corp. 108 F.R.D. 459 (D. Utah 1985) ....................................................................................33 Brand Name Prescription Drugs Antitrust Litig. 1995 U.S. Dist. LEXIS 8281 (N.D. Ill. June 15, 1995)......................................21, 32, 34 Braxton v. Farmer’s Ins. Group 2002 U.S. Dist LEXIS 18085 (N.D. Ala. Sep. 13, 2002)...............................................33 i TABLE OF AUTHORITIES (continued) Page(s) Bristol-Myers Squibb Securities Litig. 205 F.R.D. 437 (D.N.J. 2002) ......................................................................................40 Byers v. Illinois State Police 2002 US Dist. LEXIS 9861 (N.D. Ill. June 3, 2002)......................................................33 Carbon Dioxide Indus. Antitrust Litig. 155 F.R.D. 209 (M.D. Fla. 1993)..................................................................................42 Cedars-Sinai Medical Center v. Superior Court 18 Cal. 4th 1, 74 Cal. Rptr. 2d 248 (1998) .................................................................8, 9 Chambers v. Nasco, Inc. 501 U.S. 32 (1991).......................................................................................................37 China Ocean Shipping Co. v. Simone Metals Inc. 1999 U.S. Dist. LEXIS 16264 (N.D. Ill. Sept. 30, 1999) .................................................9 Cobell v. Norton 2002 U.S. Dist. LEXIS 5291 (D.D.C. Mar. 29, 2002)....................................................22 Coca-Cola Bottling Co. v. Superior Court 233 Cal. App. 3d 1273, 1293 n.10, 286 Cal. Rptr. 855 (1991) .......................................9 Crown Life Ins. Co. v. Craig 995 F.2d 1376 (7th Cir. 1993)........................................................................................3 Danis v. USN Communics., Inc. 2000 WL 1694325 (N.D. Ill. Oct. 23, 2000) ..................................................9, 13, 41, 42 DeLoach v. Philip Morris Cos. 206 F.R.D 568 (M.D.N.C. 2002)...................................................................................39 Dendrite Int'l, Inc. v. Doe No. 3 342 N.J. Super. 134 (N.J. App. Div. 2001).....................................................................4 Dodge, Warren & Peters Ins. Servs., Inc. v. Riley 105 Cal. App. 4th 1414, 130 Cal. Rptr. 2d 385 (4 Dist. 2003)................................10, 16 Doe v. 2TheMart.com Inc. 140 F. Supp. 2d 1088 (W.D. Wash. 2001) .....................................................................4 Fennell v. First Steps Designs, Ltd. 83 F.3d 526 (1st Cir. 1996) ..............................................................................15, 25, 49 ii TABLE OF AUTHORITIES (continued) Page(s) Gates Rubber Co. v. Bando Chemical Indus., Ltd. 167 F.R.D. 90 (D. Colo. 1996) .........................................................................15,
Load more

Recommended publications
  • The Shadow Rules of Joinder
    Brooklyn Law School BrooklynWorks Faculty Scholarship 2012 The hS adow Rules of Joinder Robin Effron Brooklyn Law School, [email protected] Follow this and additional works at: https://brooklynworks.brooklaw.edu/faculty Part of the Other Law Commons Recommended Citation 100 Geo. L. J. 759 (2011-2012) This Article is brought to you for free and open access by BrooklynWorks. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of BrooklynWorks. The Shadow Rules of Joinder ROBIN J. EFFRON* The Federal Rules of Civil Procedure provide litigants with procedural devices for joining claims and parties. Several of these rules demand that the claims or parties share a baseline of commonality, either in the form of the same "transactionor occurrence" or a "common question of law or fact." Both phrases have proved to be notoriously tricky in application.Commentators from the academy and the judiciary have attributed these difficulties to the context- specific and discretionary nature of the rules. This Article challenges that wisdom by suggesting that the doctrinal confu- sion can be attributed to deeper theoretical divisions in the judiciary, particu- larly with regardto the role of the ontological categories of "fact" and "law." These theoretical divisions have led lower courtjudges to craft shadow rules of joinder "Redescription" is the rule by which judges utilize a perceived law-fact distinction to characterizea set of facts as falling inside or outside a definition of commonality. "Impliedpredominance" is the rule in which judges have taken the Rule 23(b)(3) class action standard that common questions predominate over individual issues and applied it to other rules of joinder that do not have this express requirement.
    [Show full text]
  • Motion for Stay of Discovery
    Case 2:18-cv-00907-KOB Document 28 Filed 11/02/18 Page 1 of 5 FILED 2018 Nov-02 PM 04:12 U.S. DISTRICT COURT N.D. OF ALABAMA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION LAKEISHA CHESTNUT, et al., ) ) Plaintiffs, ) ) vs. ) CASE NO. 2:18-CV-00907-KOB ) JOHN H. MERRILL, ) ) Defendant, ) ) DEFENDANT SECRETARY OF STATE’S (OPPOSED) MOTION TO STAY DISCOVERY Defendant, Secretary of State John H. Merrill, respectfully requests a stay of all parties’ discovery obligations until the Court resolves the validity of Plaintiffs’ complaint. Secretary Merrill has filed a Motion for Judgment on the Pleadings arguing that Plaintiffs’ claims should be dismissed because jurisdiction lies with a three-judge court, because Plaintiffs have failed to plead facts demonstrating a proper remedy, and because Plaintiffs claims are barred by laches. When such a motion is pending, Circuit law compels a stay to guard against the “significant costs” of unwarranted discovery requests. Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997). Counsel for Defendant have consulted with counsel for the Plaintiffs, and Plaintiffs oppose this motion. Case 2:18-cv-00907-KOB Document 28 Filed 11/02/18 Page 2 of 5 I. Background Eight years after the last census and two years before the next one, Plaintiffs brought this action claiming that Alabama must re-draw its seven congressional districts to include a second majority-black district. See doc. 1. Secretary Merrill moved to dismiss when Plaintiffs failed to allege that they would reside in a re- configured majority-black district, see doc.
    [Show full text]
  • Initial Stages of Federal Litigation: Overview
    Initial Stages of Federal Litigation: Overview MARCELLUS MCRAE AND ROXANNA IRAN, GIBSON DUNN & CRUTCHER LLP WITH HOLLY B. BIONDO AND ELIZABETH RICHARDSON-ROYER, WITH PRACTICAL LAW LITIGATION A Practice Note explaining the initial steps of a For more information on commencing a lawsuit in federal court, including initial considerations and drafting the case initiating civil lawsuit in US district courts and the major documents, see Practice Notes, Commencing a Federal Lawsuit: procedural and practical considerations counsel Initial Considerations (http://us.practicallaw.com/3-504-0061) and Commencing a Federal Lawsuit: Drafting the Complaint (http:// face during a lawsuit's early stages. Specifically, us.practicallaw.com/5-506-8600); see also Standard Document, this Note explains how to begin a lawsuit, Complaint (Federal) (http://us.practicallaw.com/9-507-9951). respond to a complaint, prepare to defend a The plaintiff must include with the complaint: lawsuit and comply with discovery obligations The $400 filing fee. early in the litigation. Two copies of a corporate disclosure statement, if required (FRCP 7.1). A civil cover sheet, if required by the court's local rules. This Note explains the initial steps of a civil lawsuit in US district For more information on filing procedures in federal court, see courts (the trial courts of the federal court system) and the major Practice Note, Commencing a Federal Lawsuit: Filing and Serving the procedural and practical considerations counsel face during a Complaint (http://us.practicallaw.com/9-506-3484). lawsuit's early stages. It covers the steps from filing a complaint through the initial disclosures litigants must make in connection with SERVICE OF PROCESS discovery.
    [Show full text]
  • Illinois Civil Practice Guide
    Practice Series Illinois Civil Practice Guide Andrew W. Vail Colleen G. DeRosa © 2012 JENNER & BLOCK LLP ALL RIGHTS RESERVED www.jenner.com ABOUT JENNER & BLOCK Founded in 1914, Jenner & Block is a national law firm of approximately 450 attorneys. Our Firm has been widely recognized for producing outstanding results in corporate transactions and securing significant litigation victories from the trial level through the United States Supreme Court. Companies and individuals around the world trust Jenner & Block with their most sensitive and consequential matters. Our clients range from the top ranks of the Fortune 500, large privately held corporations and financial services institutions to emerging companies, family-run businesses and individuals. OFFICES 353 North Clark Street 633 West Fifth Street, Suite 3500 Chicago, Illinois 60654-3456 Los Angeles, California 90071 Firm: 312 222-9350 Firm: 213 239-5100 Fax: 312 527-0484 Fax: 213 239-5199 919 Third Avenue, 37th Floor 1099 New York Avenue, N.W., Suite 900 New York, New York 10022-3908 Washington, D.C. 20001-900 Firm: 212 891-1600 Firm: 202 639-6000 Fax: 212 891-1699 Fax: 202 639-6066 © 2012 Jenner & Block LLP. This publication is not intended to provide legal advice but to provide general information on legal matters. Transmission is not intended to create and receipt does not establish an attorney- client relationship. Readers should seek specific legal advice before taking any action with respect to matters mentioned in this publication. The attorney responsible for this publication is Andrew W. Vail. ATTORNEY ADVERTISING 1 AUTHOR INFORMATION Andrew W. Vail is a partner in Jenner & Block’s Litigation Department and a member of the Firm’s Complex Commercial and Antitrust Litigation Practice Groups.
    [Show full text]
  • Information Sheet No. 5 Discovery
    U.S. Merit Systems Protection Board Information Sheet No. 5 Discovery Purpose. The purpose of this information sheet is to provide general guidance and background information. It does not represent an official statement approved by the Board itself, and is not intended to provide legal counsel or to be cited as legal authority. Instead, it is intended only to help the public become familiar with the MSPB and its procedures. In all instances, however, the Board’s regulations and current case law control with respect to the matters discussed here. What is discovery? Discovery is the procedure by which you may ask questions, or obtain documents or answers from the opposing party or third parties in order to "discover" information that is calculated to lead the parties to find admissible evidence. How does discovery work? A party must make its first discovery request within 30 days following the date of the Board's Acknowledgment Order in the case. Otherwise, the request will be considered untimely (late), and the other party may be excused from having to answer it. Following receipt of a discovery request, a party must respond to it within 20 days after the date of service. If the response is inadequate, or if the discovery request is ignored, the party that made the discovery request may file a "Motion to Compel Discovery" with the administrative judge (AJ). A Motion to Compel Discovery must be filed within 10 days after the objection or nonconforming response is served, or within 10 days after the time limit for response has expired.
    [Show full text]
  • Effective Discovery Strategies in Class-Action Litigation by David R
    Spring 2014, Vol. 28 No. 3 TABLE OF CONTENTS _________________________________________________________________________________________________________ Articles » Effective Discovery Strategies in Class-Action Litigation By David R. Singh and Gaspard Curioni Lay the foundation for timely, fair, and cost-efficient resolution of a putative class action. Strategies for Removal under the Class Action Fairness Act By Wystan Ackerman Removal to federal court under CAFA requires swift action. Navigating CAFA Removal and Remand Strategies By Jennifer L. Gray Decisions concerning removal and remand under CAFA have exhibited an interesting dichotomy. A Brief Guide to Removal By Matthew M.K. Stein Removing a case to federal court is a technical and detail-oriented process. News & Developments » Potential Conflicts of Interest for Class-Action Counsel Class-action counsel should be aware of potential issues and evolving interests that may arise after a settlement agreement is reached. SCOTUS Relaxes Attorney Fee Standard in Patent Infringement Cases The Court, in two unanimous decisions, held that the Federal Circuit's test for awarding attorney fees in patent-infringement cases was too rigid. Corporate Counsel Spring 2014, Vol. 28 No. 3 _________________________________________________________________________________________________________ ARTICLES Effective Discovery Strategies in Class-Action Litigation By David R. Singh and Gaspard Curioni – May 26, 2014 Discovery in class-action litigation is notoriously asymmetric. While a corporate defendant
    [Show full text]
  • Bill of Particulars—A Very Powerful Tool
    Demand for a Bill of Particulars—A Very Powerful Tool What discovery methods do you consider when you are strategizing about the most effective method to obtain the information you need to pin down your opponent? If you are defending a contract case, think about serving a Demand for Bill of Particulars. A Demand for Bill of Particulars is NOT a discovery device, but an extension of the complaint or a cross-complaint [complaint]. It is a cost-effective method with a turnaround time of 10 days and if the court finds that any of the line items are deficient it can strike the entry and preclude plaintiff/cross- complainant [plaintiff] from proving the debt is owed. Unlike interrogatories and deposition responses where contradictory evidence can be admitted by the plaintiff, the Bill of Particulars is conclusive as to the items and amounts claimed and no other evidence is admissible at trial. What is a Demand for Bill of Particulars? The Demand for a Bill of Particulars presumes that the plaintiff suing has a “book” or “contemporaneous ledger” or an “account” to support any charges when the complaint was filed and provides a court process to require that it be presented upon demand. The account, unlike the pleading in a complaint, is supposed to “furnish a defendant with the details of the items charged against him…” Meredith v. Marks (1963) 212 Cal. App. 2d 265, 269. This procedure dates back to early common law when plaintiff sued on an alleged account, and the pleadings gave no specifics as to the nature of the claim –i.e., whether contract, quasi-contract etc.
    [Show full text]
  • Chapter 6 – Civil Case Procedures
    GENERAL DISTRICT COURT MANUAL CIVIL CASE PROCEDURES Page 6-1 Chapter 6 – Civil Case Procedures Introduction Civil cases are brought to enforce, redress, or protect the private rights of an individual, organization or government entity. The remedies available in a civil action include the recovery of money damages and the issuance of a court order requiring a party to the suit to complete an agreement or to refrain from some activity. The party who initiates the suit is the “plaintiff,” and the party against whom the suit is brought is the “defendant.” In civil cases, the plaintiff must prove his case by “a preponderance of the evidence.” Any person who is a plaintiff in a civil action in a court of the Commonwealth and a resident of the Commonwealth or a defendant in a civil action in a court of the Commonwealth, and who is on account of his poverty unable to pay fees or costs, may be allowed by the court to sue or defendant a suit therein without paying fees and costs. The person may file the DC-409, PETITION FOR PROCEEDING IN CIVIL CASE WITHOUT PAYMENT OF FEES OR COSTS . In determining a person’s ability to pay fees or costs on account of his/her poverty, the court shall consider whether such person is current recipient of a state and federally funded public assistance program for the indigent or is represented by legal aid society, including an attorney appearing as counsel, pro bono or assigned or referred by legal aid society. If so, such person shall be presumed unable to pay such fees and costs.
    [Show full text]
  • Defense Motion for a Bill of Particulars
    IN THE UNITED STATES ARMY FIRST JUDICIAL CIRCUIT U N I T E D S T A T E S ) ) DEFENSE MOTION FOR v. ) APPROPRIATE RELIEF UNDER ) R.C.M. 906(b)(6) MANNING, Bradley E., PFC ) U.S. Army, xxx-xx-9504 ) BILL OF PARTICULARS Headquarters and Headquarters Company, U.S. ) Army Garrison, Joint Base Myer-Henderson Hall, ) DATED: 16 February 2012 Fort Myer, VA 22211 ) RELIEF SOUGHT 1. PFC Bradley E. Manning, by and through counsel, moves this court, pursuant to R.C.M. 906(b)(6) and the Fifth, Sixth and Eighth Amendments to the United States Constitution to direct the Government to file a bill of particulars in the subject case on the ground that it is necessary for him to understand the charges against him so that he may adequately prepare his defense and not be subjected to unfair surprise at trial. BURDEN OF PERSUASION AND BURDEN OF PROOF 2. As the moving party, the Defense has the burden of persuasion. R.C.M. 905(c)(2). The burden of proof is by a preponderance of the evidence. R.C.M. 905(c)(1). FACTS 3. PFC Manning is charged with five specifications of violating a lawful general regulation, one specification of aiding the enemy, one specification of disorders and neglects to the prejudice of good order and discipline and service discrediting, eight specifications of communicating classified information, five specifications of stealing or knowingly converting Government property, and two specifications of knowingly exceeding authorized access to a Government computer, in violation of Articles 92, 104, and 134, Uniform Code of Military Justice (UCMJ) 10 U.S.C.
    [Show full text]
  • Bifurcated Discovery in Class Actions: an Effective Strategy to Prevent the Continuation of the Unmeritorious Lawsuit
    y June 2011 Bifurcated Discovery in Class Actions: An Effective Strategy to Prevent the Continuation of the Unmeritorious Lawsuit BY THE COMPLEX LITIGATION AND TRIAL PRACTICE Consumer class action lawsuits are expensive. Case after case confirms this fact. Recognizing this, many consumer class action lawsuits are filed without a proper class representative, solely so that discovery may be initiated to locate a plaintiff with a “legitimate” claim. As counsel for the named plaintiffs search for someone, anyone, to step into the lawsuit in the place of the original plaintiffs, the defendant faces substantial cost in discovery alone, and that cost takes many forms. It includes dollars spent, employee hours lost, possible reputational harm in the market place, and a general distraction from day-to-day operations. In light of that reality, the Paul Hastings Complex Litigation and Trial Practice employs a number of strategies in an effort to reduce that cost. One of those strategies is to pursue bifurcated discovery. Assuming a case survives a demurrer or a motion to dismiss, and after consultation with the client to ensure the strategy is appropriate for the particular case, Paul Hastings will often seek to bifurcate discovery into two phases: (1) pre-class certification discovery, and (2) post-class certification discovery. In the pre-class certification phase, discovery would be limited to the issues relevant to the class-certification analysis, inclusive of the plaintiff’s standing to pursue the asserted claims. If a class is certified and makes it to the post-class certification phase, discovery will focus on the “merits” of the underlying claims.
    [Show full text]
  • Federal Pleading and State Presuit Discovery Scott Od Dson UC Hastings College of the Law, [email protected]
    University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 2010 Federal Pleading and State Presuit Discovery Scott oD dson UC Hastings College of the Law, [email protected] Follow this and additional works at: http://repository.uchastings.edu/faculty_scholarship Recommended Citation Scott odD son, Federal Pleading and State Presuit Discovery, 14 Lewis & Clark L. Rev. 43 (2010). Available at: http://repository.uchastings.edu/faculty_scholarship/1401 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. FEDERAL PLEADING AND STATE PRESUIT DISCOVERY by Scott Dodson This Article explores the role that state presuit discovery could play in rectifying the information imbalance caused by Twombly and Iqbal- when a plaintiff in federal court requires information in the hands (or minds) of defendants or third parties in order to properly plead her claim, but such information is not discoverable unless the claim can survive a motion to dismiss. First, this Article provides an account of the development of federal pleading standards from before Twombly through their current post-Iqbal state. Second, this Article describes the effects of the post-Iqbal federal pleading standards and highlights the harsh results that they can have when the plaintiff is confronted with information asymmetry. Third, this Article describes various state law presuit discovery tools that are available to be used by plaintiffs who fear dismissal under the federal pleading standards.It then considers whether they can be an effective tool for avoiding dismissal, in light of both their utility and their limitations.
    [Show full text]
  • Excerpt from California Civil Litigation and Discovery
    Attacking the Complaint 72/ One of the ways to respond to the complaint is to attack it as legally insufficient on one or more grounds. The paralegal needs to know the substantive grounds upon which to attack the complaint or other pleading as well as the various procedures for doing so. In that regard, some attacks may be made by way of affirmative defense, and others must be made via motion or both; some grounds are waived if not timely brought, and others may be brought at any time. ! When the defect appears on the face of the complaint or from matters judicially noticed, it may be attacked by demurrer.73/ ! When the defect does not appear on the face of the complaint, it may only be raised as an affirmative defense. Grounds for Attacking the Complaint As noted in prior chapters, there are many requirements for bringing a lawsuit against a defendant. To review: ! The court must have a constitutionally sufficient basis for exerting jurisdiction over the defendant.74/ ! The defendant must be given notice (met by service of process) in a manner that meets constitutional due process and statutory requirements.75/ ! The court must have subject matter jurisdiction.76/ 72/ Any pleading may be attacked by the methods discussed here. Thus, although we refer to the complaint, the discussion applies to attacks on answers and cross-complaints as well. 73/ A defect is on the face of the complaint when it is evident from the construction of the complaint without further investigation. 74/ Recall that there is a constitutionally sufficient basis when the defendant is physically in the forum state when he/she is served with the sum m ons and com plaint, the defendant lives in or plans to live indefinitely in the state, the defendant has agreed to submit to the jurisdiction of the court by contract or other agreement, or when the defendant has the required minimum contacts with the state.
    [Show full text]